1. During the hearing of these petitions it was submitted by
learned Solicitor General that in view of the mandate of Article
145(3)
of the Constitution of India, 1950 (in short the
'Constitution') and Order 35 of Supreme Court Rules, 1966 (in
short the 'Rules'),
these cases should be heard by a Bench of
at least five Hon'ble Judges. It was submitted that not only
petitions raise substantial
questions of law but also
interpretation of the Constitution is involved.

2. Learned counsel for the petitioners on the other hand
submitted that in the counter affidavit filed by the Union of
India it has
been specifically stated that, according to it, there
was no question of law much less of substantial nature
involved and the issues
raised are covered by various
decisions of this Court, more particularly, Indra Sawhney v.

Union of India and Ors. (1992 Supp. (3) SCC 217). If that be
so, learned counsel for the petitioners submitted, there is no
substance
in the present stand of learned Solicitor General
that substantial questions of law are involved. According to
him, the cases can
be decided on the pleadings made and the
acceptability of stands.

3. Mr. K. Parasaran and Mr. Ram Jethmalani, learned
Senior counsel for one of the respondents, submitted that they
support the stand
of learned Solicitor General that the matter
should be heard by a Bench of at least five Hon'ble Judges.

They, however, stated that the stand taken in the counter
affidavit cannot be determinative. The interpretation of the
provisions
of the Constitution and/or the Central Educational
Institutions (Reservation in Admission) Act, 2006 (in short the
'Act') fall for
interpretation in these cases.

4. Learned counsel for the petitioners, however, stated
that the complex issues relating to the scope and ambit of
Article 15(5)
of the Constitution and the validity of 93rd
Constitution Amendment Act, 2005 are involved. It is pointed
out that behind the so
called anxiety which is nothing but a
fagade, to provide better educational facilities for socially and
educationally backward classes,
the objective is to play a
political game and what is commonly accepted as "Vote
politics". The objective is not so much
for social empowerment
as creating a vote bank. In the name of social empowerment,
what is intended to be done is to create a caste
divide which
shall have catastrophic implications. The object is not social
empowerment and/or to extend help to the deprived.
If that
was really so, the stress should have been on social and
economic backwardness. If any class needs protection, it is
the
socially and economically backward class of people. It is
also pointed out that the framers of the Constitution had
indicated a
specific period for reservation. They had felt that
the period is good enough to take care of any injustice they
may have been hypothetically
meted out to socially and
educationally backward castes. But with oblique motives the
period is being extended. It is submitted
that the same cannot
be the objective of the Constitution. It has also been
submitted that there is no scope for reservation in
higher
education and the Act empowers reservation in educational
institutions imparting higher education and that itself is
unconstitutional.
Further, the basic data for identifying the
"backward classes" has not yet been placed before this Court
though at the
threshold the inadequacy and non-availability of
such data was highlighted by this Court. It is submitted that
this Court in Jagdish
Negi, President, Uttarakhand Jan
Morcha and Anr. V. State of U.P. and Anr. (1997 (7) SCC 203)
held that the State cannot be bound
in perpetuity to treat
some classes of citizens for all time as socially and
educationally backward classes of citizens. In these
circumstances, it is submitted that the writ petitions should
be disposed of on the material as existing presently.

5. We shall first deal with the effect of the counter affidavit
filed by the Union of India. In Sanjeev Coke Manufacturing
Company
v. M/s Bharat Coking Coal Ltd. And Anr. (1983 (1)
SCC 147) it was inter-alia held as follows:

"25. Shri Ashoke Sen drew pointed attention to
the earlier affidavits filed on behalf of Bharat
Coking Coal Limited and commented
severely
on the alleged contradictory reasons given
therein for the exclusion of certain coke oven
plants from the Coking Coal Mines
(Nationalisation) Act. But, in the ultimate
analysis, we are not really to concern ourselves
with the hollowness or the self-condemnatory
nature of the statements made in the affidavits
filed by the respondents to justify and sustain
the legislation. The deponents of
the affidavits
filed into court may speak for the parties on
whose behalf they swear to the statements.

They do not speak for the Parliament. No one
may speak for the Parliament and Parliament
is never before the court. After Parliament
has
said what it intends to say, only the court may
say what the Parliament meant to say, None
else. Once a statute leaves Parliament
House,
the Court is the only authentic voice which
may echo (interpret) the Parliament. Thus the
court will do with reference to
the language of
the statute and other permissible aids. The
executive Government may place before the
court their understanding of
what Parliament
has said or intended to say or what they think
was Parliament's object and all the facts and
circumstances which
in their view led to the
legislation. When they do so, they do not speak
for Parliament. No Act of Parliament may be
struck down
because of the understanding or
mis-understanding of parliamentary intention
by the executive Government or because their
(the Government's)
spokesmen do not bring
out relevant circumstances but indulge in
empty and self-defeating affidavits. They do
not and they cannot
bind Parliament. Validity
of legislation is not to be judged merely by
affidavits filed on behalf of the State, but by all
the relevant
circumstances which the Court
may ultimately find and more especially by
what may be gathered from what the
legislature has itself
said. We have mentioned
the facts as found by us and we do not think
that there has been any infringement of the
right guaranteed
by Article 14."

6. To quote Justice Holmes: The life of law has not been
logic; it has been experience. The felt necessities of law, the
prevalent
moral and political theories, intuitions of public
policy, avowed and unconscious, even the prejudices which
Judges share with their
followmen have had a good dear more
to do than the syllogism in determining the rules by which the
men should be governed.

7. Untrammeled by the effect of Article 145(3) and Order 35
of the Rules, considering considerable importance of the
issues involved
and its likely impact in the social life of the
country as a whole and the complexities of the questions, it is
appropriate that
the matter should be heard by a larger
Bench. The pivotal challenges in the writ petitions are as
follows:

(1) Challenge to the Constitution 93rd Amendment Act,
2005 by which Article 15(5) has been inserted in Part III
of the Constitution.

(2) Challenge to the policy of reservation as a form of
"affirmative action".

(3) Challenge to the "caste based" reservation or the
"caste based" affirmative action.

(4) Challenge to the Act.

8. The basic issues which need to be considered by the
larger Bench, are as follows:

93rd Constitution Amendment Act, 2005
(1) Whether the 93rd Constitution Amendment Act, 2005
and Article 15(5) are unconstitutional
as being violative of
the basic structure of the Constitution?
(2) If the Amendment is valid, how is it to be interpreted
and implemented?
(3) Whether the 93rd Amendment insofar as it empowers
the government to make special provisions by way of
reservations in educational
institutions (including private
educational institutions) is violative of the basic structure
of the Constitution?
(4) Whether the
93rd Amendment confers on the State an
unbridled power to make special provisions for "socially
and educationally backward classes",
without indicating
the circumstances when such provision may be made,
and without imposing any limit either on the contents or
duration
of such special provisions and is, therefore,
wholly destructive of the right of equality of the citizens
and thereby violative of
basic structure?
(5) Whether depriving the protection of Art. 19(1)(g) to
non-minority institutions (while excluding minority
institutions
from Art. 15(5)), after the decision in P.A.

Inamdar v. State of Maharashtra (2005 (6) SCC 537)
which held that non-minority institutions enjoyed a
similar protection, upsets
the delicate balance of the
Constitution, and is inconsistent inter-alia with the
principles of secularism and thereby is violative
of the
basic structure?
Scope of Articles 15(4) and 15(5)
(1) What is the true ambit and scope of Articles 15(4) and
15(5) of the
Constitution?
(2) If Article 15(5) is valid, what is its true scope and ambit?
(3) What is the meaning of the term "special
provisions"

in Articles 15(4) and 15(5) of the Constitution? Does it
include 'quotas' by reservation of seats especially in
higher educational
institutions and professional and
technical education (particularly those of national stature
or importance and in courses categorized
as speciality or
super speciality). Is it a permissible measure of
advancement of socially and educationally backward
classes?
(4)
If the answers to above questions are in the
affirmative, then what are the necessary ingredients of
any "Affirmative Action"
programme of the State
including the "nature and extent" of the benefits
proposed and the limitations thereon, in order
to balance
the rights between Articles, 14, 15, 29(2) and its "facet"

in Articles 15(4) and 15(5)?
(5) Whether a rational policy of affirmative action that
would ensure imparting free and compulsory
education
to the illiterate sections among all the citizens including
the backward classes, is absent and if so, whether
affirmative
action in favour of SEBCs is discriminatory
and unconstitutional?
(6) What is the meaning of the words "for the
advancement
of any socially and educationally backward
classes of citizens" in Articles 15(4) and 15(5)? What is
the yardstick for measuring
educational backwardness in
Clauses (4) and (5) of Article 15?
(7) Whether substitution of the expression "socially and
educationally
backward classes of citizen" by "socially
and economically backward classes" would result in
fulfilling constitutional
intentions and objectives?
Scope of Judicial Review
(1) Having regard to the fact that special provision by way
of reservation in
Central Educational Institutions has
been made by law enacted by Parliament and the
enabling provision of Article 15(5) vesting the
power in
the State to make such provision by law, is the scope of
judicial review restricted or not?
(2) What are the parameters
and limits of judicial
review of a law enacted by the Parliament providing for
reservation in pursuance of the mandate of Articles
15(4)
and 15(5), having regard, inter-alia to the order of
reference to the Constitution Bench on Subramanian
Swamy (Dr.) vs. Director,
CBI & Ors. (2005) 2 SCC 317)?
Listing of Socially and Educationally Backward Classes
in terms of units of caste/communities
(1)
Whether reservations based solely or principally upon
the basis of caste are impermissible under Article 15?
(2) Whether a reservation
that relies significantly on
"caste" to identify its beneficiaries is inherently divisive
and incompatible with the Unity
and integrity of the
Nation?
(3) If the answer to Questions (1) and (2) above is in the
affirmative, then how, in what way and on
what basis are
the beneficiaries of "special provisions" to be identified,
selected, included or excluded?
(4) Does the
Union of India's method, manner and extent
of identifying and compensating beneficiaries of 'special
provisions' perpetuate caste
and backwardness?
(5) Whether "caste based" reservations are a permissible
form of affirmative action under Article 15?
If the answer
to the question above is in the affirmative, then what are
the permissible criteria for the identification of the "class"

to whom the benefits under an affirmative action
programme are to be extended under Article 15?
(6) Whether the reservation policy
of the State which
lacks a Continuous Review Mechanism is violative of
Articles 14, 15, 21 and 29(2)?
(7) Whether, after the judgment
in Indra Sawhney's case
(supra), the classification of backward classes on the
basis of caste for the purposes of Article 16(4) would
equally apply to Articles 15(4) and Article 15(5) of the
Constitution?
Whether 27% reservation in Socially Educational
Backward
Classes/Other Backward Classes is justified
(1) Whether the Act insofar as it mandates reservation of
27% in all educational institutions
(including private
aided institutions) irrespective of and unrelated to the
"compelling need" of the State and without
any limit of
time and without any computable data for identification
of persons as OBCs, is violative of Articles 14,15, 21A
and
29(2) of the Constitution?
(2) Special provision by way of reservation of 27% for
OBCs in Central Educational Institutions being
within
the percentage authorized by Indra Sawhney's case
(supra) and it having been ensured that there will be
increase of seats
so as not to diminish the number of
seats available for non reserved category, could such
provision be held to be unconstitutional?
(3) Whether the Central Educational Institutions
(Reservation in Admission) Act, 2006 (Act No.5 of 2007) is
violative of Articles
14, 15(1), 19, 21 and 29(2) of the
Constitution?
Socially Advanced Persons/Sections or creamy layer of
SEBC/OBC
(1) Would at all
the concept of "creamy layer" propounded
in the context of public employment in Indra Sawhney's
case (supra) be applicable
to special provision by way of
reservation for education provided for by law made by the
State?
(2) Whether in balancing formal equality
vis-`-vis
defacto equality under Article 14 and Article 15(5)
"creamy layer" should or should not be excluded?
(3) Whether
the concept of Socially Advanced
Persons/Sections or creamy layer of SEBC
castes/communities formulated in the Indra Sawhney's
case
(supra) for the purpose of exclusion from reservation
of appointments or posts under Article 16(4) is applicable
in relation to reservation
in education including higher
education and admission to seats in educational
institutions under Article 15(4) and Article 15(5)?
(4) Whether the provisions of the Act insofar as it does
not exclude or make provision for the identification and
exclusion of the
"creamy layer" from the beneficiaries of
reservation fall foul of Articles 15 and 29(2)?
Constitutionality/Validity of
the 2006 Act
(1) Whether the reasons given by the Union and the data
furnished by it in order to justify and sustain Act No. 5
of
2007 satisfies the requirements of a valid exercise of
affirmative action as laid down in various judgments (e.g.

M. Nagaraj and Ors. v. Union of India and Ors. (2006 (8)
SCC 212) and can provide a valid basis for reservation of
the kind sought
to be attained by the impugned Act?
(2) Whether the Act is in violation of Article 26 of the
Universal Declaration of Human Rights
which postulates
that technical and professional education shall be made
generally available and higher education shall be equally
accessible to all on the basis of merit?

9. It is needless to say that the larger Bench hearing the
matter can consider further issues or questions involved.

10. Let records be placed before the Hon'ble Chief Justice of
India for appropriate orders.

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